Citation Nr: 1306077 Decision Date: 02/21/13 Archive Date: 02/27/13 DOCKET NO. 08-07 663 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to special monthly pension at the housebound rate. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The Veteran served on active duty from January 30, 1962 to January 10, 1964, and from January 27, 1964 to May 10, 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. This case was previously before the Board in February 2010, at which time it was remanded for additional development. At that time, it was noted that the Veteran had not taken issue with the RO's disallowance of special monthly pension based on the need for the regular aid and attendance of another person. Accordingly, the Board will confine its review solely to the issue listed on the title page of this decision. FINDING OF FACT The Veteran does not have a single permanent disability rated 100 percent disabling under the Schedule for Rating Disabilities, nor is he permanently housebound by reason of his disabilities. CONCLUSION OF LAW The criteria for special monthly pension at the housebound rate have not been met. 38 U.S.C.A. §§ 1502, 1521, 5103, 5103A (West 2002); 38 C.F.R. § 3.351 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) In the case at hand, the requirements of 38 U.S.C.A. § 5103 and 5103A (West 2002) have been met. There is no issue as to whether the Veteran was provided an appropriate application form, or the completeness of his application. VA notified the Veteran in June 2007, April 2009, and July 2012 of the information and evidence needed to substantiate and complete his claim, to include notice of what part of that evidence was to be provided by him, and what part VA would attempt to obtain. VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate his claim, and, as warranted by law, affording VA examinations. Currently, there is no evidence that additional records have yet to be requested, or that additional examinations are in order. Moreover, there is currently no error or issue which precludes the Board from addressing the merits of the Veteran's appeal. Finally, the Board wishes to make it clear that it has reviewed all the evidence in the Veteran's claims file, which includes his multiple contentions, as well as both VA treatment records and examination reports. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the Veteran's claim, and what the evidence in the claims file shows, or fails to show, with respect to that claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Special Monthly Pension-Housebound The Veteran in this case seeks special monthly pension at the housebound rate. In pertinent part, it is contended that, as provided by the United States Court of Appeals for Veterans Claims (Court) in Hartness v. Nicholson, 20 Vet. App. 216 (2006), he is 65 years of age or older, meets the requisite service criteria of 38 U.S.C.A. § 1521(e) (2011) (i.e., has 90 days of wartime service), and possesses a disability which is independently ratable at 60 percent or more, thereby entitling him to special monthly pension at the housebound rate. In that regard, in a rating decision of December 1997, the RO awarded the Veteran a permanent and total disability rating for pension purposes. At the time of that award, the Veteran was 58 years of age. The Veteran's nonservice-connected disabilities consist of the residuals of a neck fracture with left hand weakness, sinusitis, and a right knee disability, rated noncompensably disabling. Other nonservice-connected conditions include hypertension, alcoholic cirrhosis, and gastroesophageal reflux disease. Current disabilities considered for pension purposes only consist of a flexion deformity of the left thumb with an inability to grasp, evaluated as 20 percent disabling; cervical spondylolisthesis, evaluated as 10 percent disabling; chronic obstructive pulmonary disease, evaluated as 10 percent disabling; and superficial varicose veins of the ankles and feet, likewise evaluated as 10 percent disabling. Current service-connected disabilities consist of the residuals of fracture of the left patella, evaluated as 20 percent disabling; and posttraumatic stress disorder, evaluated as 10 percent disabling. At the time of a VA examination for the purpose of determining the Veteran's need for the aid and attendance of another person or housebound status conducted in June 2007, it was noted that the Veteran's "main problem" was alcohol abuse. According to the examiner, this was noted all through his medical records. Significantly, when questioned, the Veteran indicated that he was currently drinking "18 beers a day and some liquor on occasion." When questioned as to whether he required an attendant to attend the current examination, the Veteran indicated that he had not been able to drive for the past 20 years because he was "convicted three times for driving under the influence." The Veteran further indicated that he was not currently hospitalized, permanently bedridden, or blind. Moreover, according to the Veteran, he currently lived alone in a three-bedroom home, and paid his own bills. The Veteran denied any bowel or bladder incontinence, but did admit to some problems with memory. When further questioned, the Veteran indicated that he did not have a problem with balance which affected his ability to ambulate. Nor did he utilize a cane, corrective shoes, or a walker. According to the Veteran, he "walked easily without help." Moreover, he was able to perform all necessary self-care. On physical examination, the Veteran was mentally alert, and in no distress. His build and posture, as well as his state of nutrition, were described as good, and his gait was normal. At the time of examination, the Veteran claimed some weakness in his left hand as a result of a neck injury. However, he was able to feed himself, fasten his clothing, and bathe and shave on his own. Regarding the Veteran's lower extremities, there was no evidence of any amputation. While the Veteran claimed that his legs were weak, and that he sometimes got cramps in his calves, he denied other problems with his legs. When questioned regarding his ability to ambulate, the Veteran indicated that he could walk approximately two blocks before he had to stop, due mainly to the fact that he became short of breath. The Veteran denied the need for any type of mechanical aid, and stated that if the distance was not too far, he could walk to his destination. Physical examination revealed the Veteran to be well developed and well nourished, as well as mentally alert. His neck was normal with no bruits, and his heart was within normal limits. At the time of examination, the Veteran's abdomen was within normal limits, and his lungs were clear. The pertinent diagnoses noted were status post injury to the left neck; status post fracture of the left patella; chronic obstructive pulmonary disease; and alcohol abuse. As of the time of a more recent VA aid and attendance/housebound examination in December 2011, it was noted that the Veteran's claims folder and medical records were available, and had been reviewed. Significantly, the Veteran was described as neither permanently bedridden nor currently hospitalized. Regarding the Veteran's typical daily activities, it was noted that he was able to dress, bathe, and feed himself, and to leave his home at will. According to the Veteran, he did not drive due to the fact that he had lost his license. Reportedly, the Veteran did his own laundry and prepared his own meals. Moreover, he maintained a small garden. When further questioned, the Veteran complained of occasional dizziness and mild (i.e., occasional) memory loss. However, he was able to perform all self care functions. On physical examination, it was noted that the Veteran was able to walk without the assistance of another person for more than one-half, but less than one, mile. Function of the Veteran's upper and lower extremities was described as within normal limits, to include a full and normal range of motion of both arms and both legs. The pertinent diagnoses noted were alcoholism, hypertension, tobacco use, chronic obstructive pulmonary disease, and a history of gastrointestinal bleeding. In the opinion of the examiner, the Veteran was not housebound. In fact, by his own admission, he freely left his home at will, though he needed someone to drive him due to the loss of his driver's license. According to the examiner, there was no reason for the Veteran to be bedbound or housebound. Moreover, by his own admission, he denied being either bedbound or housebound. The Veteran was independent in the activities of daily living in his place of residence, and left his home at will. In the opinion of the examiner, the current examination did not reveal any condition confining the Veteran to his bed, home, or hospital. Nor were there any functional impairments of vision, any extremity, or the cervical or lumbar spines. The Veteran was fully able to undress and dress himself without assistance, and showed no evidence of any gait abnormality. In fact, he was able to walk without assistance with no limp. In the opinion of the examiner, based on a review of the Veteran's claims folder, as well as the current interview and examination, the Veteran had no disability which rendered him housebound. Pursuant to applicable law and regulation, housebound benefits are warranted where, in addition to having a single permanent disability rated 100 percent disabling under the Schedule for Rating Disabilities [not including ratings based on unemployability under 38 C.F.R. § 4.17 (2011)], the Veteran: (1) has additional disability or disabilities independently ratable at 60 percent or more, separate and distinct from the permanent disability rated as 100 percent disabling and involving different anatomical segments or bodily systems, or (2) is "permanently housebound" by reason of disability or disabilities. This requirement is met when the Veteran is substantially confined to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical area, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. 38 C.F.R. § 3.351 (2011). However, according to a previous holding of the United States Court of Appeals for Veterans Claims (Court), a service member is entitled to special monthly pension based on housebound status when he or she is 65 years of age or older, meets the service criteria of 38 U.S.C.A. § 1521(e) (2010) (i.e., has 90 days of wartime service), and possesses a disability that is independently ratable at 60 percent or more, or is considered "permanently housebound" as defined under 38 U.S.C.A. § 1502(c) (2011). In other words, the requirement under 38 U.S.C.A. § 1521(e) that a claimant have a disability that is permanent and total (100 percent) is excluded where he or she is 65 years of age or older. See Hartness v. Nicholson, 20 Vet. App. 216 (2006). As noted above, the Veteran argues that he meets the requirements of Hartness, and is therefore entitled to an award of special monthly pension at the housebound rate. However, pursuant to a recent decision of the United States Court of Appeals for the Federal Circuit, the holding in Hartness has now been expressly overruled. See Chandler v. Shinseki, 676 F.3d 1045, 1047-48, 1050 (Fed. Cir. 2012). More specifically, in Chandler, the Federal Circuit determined that Hartness was incorrectly decided, and held that 38 U.S.C.A. § 1513(a) (West 2002) only eliminates the permanent and total disability threshold requirement in 38 U.S.C.A. § 1521(a) (West 2002), but not the remaining requirements of the 38 U.S.C.A. § 1521 (West 2002) subsections. Id. at 1050. Put somewhat more simply, in order to warrant an award of special monthly pension at the housebound rate, it must now once again be demonstrated that the Veteran has a single permanent disability rated at 100 percent disabling under the VA's Schedule for Rating Disabilities. As is clear from the above, inasmuch as the Veteran does not have a single permanent disability rated 100 percent disabling under the Rating Schedule, he does not meet the threshold requirement for an award of special monthly pension at the housebound rate. Nor is he "permanently housebound" (which is to say, substantially confined to his dwelling and the immediate premises) by reason of his disabilities. In fact, by the Veteran's own admission, he freely leaves his home at will. Under the circumstances, the preponderance of the evidence is against the Veteran's claim for special monthly pension at the housebound rate. ORDER Entitlement to special monthly pension at the housebound rate is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs